Examines the impact of the EU`s institutional structure on disputes involving individual rights. Kelemen argues that EU institutions have promoted a certain type of law and regulation, “adversarial legalism,” a factor that has led to an increased number of disputes by public authorities and private parties. The analysis shows how the creation of EU rights empowers societal actors to enforce EU law and promotes strict centralisation of enforcement by the European Commission. Kelemen examines various areas of public interest to illustrate how this enforcement mechanism has shifted the balance of power between Member State governments. The five sections of the chapter are: Introduction; The institutional foundations of the EU rights revolution – an examination of how the EU`s basic institutional structure is conducive to the dissemination of rights and a contradictory procedural approach to enforcement; The legal foundations of the European revolution of EU rights – an overview of recent developments in EU law that have broadened the legal basis for EU disputes; The Societal Foundations of the EU Rights Revolution – an examination of the diversity of social and institutional arrangements at the national level that may influence litigation patterns; and Conclusion – a presentation of the results of a survey of EU stakeholder organisations on their use of dispute resolution strategies. Critics might view Eurolegalism as a kind of American disease. The growing role of law, lawyers and litigation in the EU will lead to some of the pathologies seen in the US, such as high legal costs, slow and conflicting regulatory procedures, and conflicting relationships between stakeholders in the political process. But Eurolegalism has virtues: it tends to increase the transparency of regulatory processes, improves access to justice and, ultimately, can hold officials more accountable for their political decisions. Some leaders even hope that by promoting a “Europe of Rights”, the EU`s legal system can help win greater public support for the EU.
The process of European integration is changing traditional legal and regulatory models in the European Union (EU). An extensive literature on comparative regulatory styles, dating back more than three decades, shows how the regulatory styles that have long prevailed in Western European democracies differed from the American regulatory style. The United States is, as Professor Robert Kagan of the University of California, Berkeley has put it, the land of “adversarial legalism,” where regulation is based on detailed and transparent legal standards, adversarial approaches to dispute enforcement and resolution, active judicial oversight, and costly legal challenges that often involve private actors empowered to enforce regulations. In comparison, the forms of regulation that prevailed in Western Europe were more cooperative, informal, opaque and less dependent on the involvement of lawyers and the courts. Indeed, regulation through litigation was unknown in European democracies. Instead, closed networks of bureaucrats and regulated interests in the diversity of European national regulatory systems have developed regulatory policies with little interference from courts and private litigants. It remains to be seen whether the positive aspects will outweigh the negative aspects. What is clear is that the rise of Eurolegalism will affect not only legal and regulatory systems, but also democracy itself. Growing attention to individual rights can undermine the culture of compromise that is crucial for consensual models of democracy in many European countries. Legalisation and the tendency to shape policies as rights are likely to make it difficult for European democracies to pursue policies formulated to serve broader public interests when they conflict with individual rights. The EU is a community based on the rule of law.
Formal law, courts, lawyers and litigation have played a central role in the process of European integration. As the scope of EU policies continues to go beyond its administrative capacity, the EU legal system should play an even more important role. We can expect Eurolegalism to spread further and change legal and regulatory models in EU Member States, but should we welcome this? Despite Western Europe`s traditional contempt for the “adversary legalism” of the United States, the European Union is moving towards a very similar approach to law, according to R. Daniel Kelemen. By coining the term “Eurolegalism” to describe the hybrid that is currently developing in Europe, he shows how the political and organisational realities of the EU make this change inevitable. Today, that is changing. While European regulatory systems do not converge directly with the American system, the legal and regulatory models of the European Union are evolving into a separate European variant of American adversarial legalism, a variant I call “Eurolegalism.” Eurolegalism shares the defining characteristics of American-style adversary legalism: the emphasis on transparent and enforceable legal norms by the courts (often referred to as “rights”), the contradictory application by public authorities, and the empowerment of private actors to enforce legal norms. However, due to the moderating influence of established national legal institutions in Europe, Eurolegalism is a more moderate and calmer form of adversarial legalism than in the United States. In this article on Varieties of Legal Order, a book inspired by Robert Kagan`s research, we provide insight into the debate over the spread of American “adversary legalism” in Europe.
In the 1990s, Kagan developed the concept of adversarial legalism to capture the pronounced processuality of the American regulatory system and asked if it could gain a foothold in Europe. In our subsequent research, we proposed different answers. R. Daniel Kelemen concluded that a legal style similar to opposition to legalism – which he eventually called Eurolegalism – has in fact spread throughout the European Union. Based on her case study on data protection, Francesca Bignami argued that EU regulation has not evolved into antagonistic legalism, but has relied more on government enforcement and private sector cooperation, a style she described as “cooperative legalism”. The chapter links the discussion of our own work to other important contributions to the debate on European regulation. It concludes by stressing the continued importance of understanding the European regulatory style and highlighting issues on which future research will be crucial. Economic liberalisation and political fragmentation in the context of the European integration process generate political incentives and functional pressures that encourage EU policymakers to rely on Eurolegalism as a form of government. Efforts to create the EU`s single market have undermined traditional regulatory systems based on cooperation, informality and the relationship between regulators and returning market participants. As national regulatory systems collapse in this liberalised environment, policymakers see the need for reregulation at EU level.